,,A very flexible ius ad bellum"

The International Criminal Court

By John Laughland

The International Criminal Court, whose treaty received its 60th signature on Thursday, is commonly presented as a successor to the International Military Tribunal which tried the Nazi leaders at Nuremberg. The reality is quite the opposite. Far from continuing the jurisprudential principles established at Nuremberg, the ICC abandons them; far from protecting the spirit of the Charter of the United Nations, the ICC's existence will destroy the entire post-war international system; and far from establishing a new legality in international relations, the ICC - which is based on a dangerous ignorance about the most fundamental principles of constitutionalism - will brutally disembowel the rule of law from world politics.

It is doubly false to say that Nuremberg created the precedent that international tribunals may sit in judgement over the internal affairs of states. Nuremberg was not an international tribunal in the sense that the ICC is. It was composed exclusively of the four Allied powers, who were the holders of German national sovereignty following the Reich's unconditional surrender. When other states asked the Allies if they could participate in the Nuremberg trials, their requests were turned down.

There was no attempt to pretend that the four Allies represented ,,humanity"or ,,the peoples of the world": on the contrary, the Nuremberg judges insisted that the promulgation of the IMT Charter in 1946 was ,,the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered."At the ,,Justice"Trial in 1947 (USA v. Alstoetter et. al.) , the judges were at pains to explain that their right to judge flowed from the unique and historically unprecedented fact of the Reich's unconditional surrender. ,,Only by giving consideration to the extraordinary and temporary situation in Germany,"they ruled, ,,can the procedure here be harmonised with the established principles of national sovereignty". In other words, those principles had to be respected for the Nuremberg trials to be valid.

The judges insisted that the ,,universality and superiority of international law does not imply universality of its enforcement": states reserved ,,the exclusive power within (their) boundaries to apply or withhold sanctions". The powers enjoyed by the Allied Control Council were, the judges said, ,,a power which no international authority without consent could assume or exercise within a state having a national government authority presently in the exercise of its sovereign powers".

This firm rejection of legal supranationalism is in stark contrast to the Statute of the International Criminal Court, whose Article 17 allows the ICC to have jurisdiction if a state is ,,unwilling"to carry out the prosecution itself. This single provision overrides the ICC's character as a treaty organisation in classical international law and - as is the case with the European Union - creates a body which will immediately behave as if it enjoyed autochthonous supranational powers. The provision means that if a German citizen is accused of crimes by the ICC, Germany will be legally bound to hand him over without the German judicial system having the right to review the application in any way. By signing the ICC treaty, states have eviscerated their own national judicial systems, creating instead the superior jurisdiction of a Court which is subject to no democratic, parliamentary or legal control.

The second reason why the ICC is not the successor to Nuremberg is umbilically connected to first. The obsession of the Nuremberg jurisprudence with national sovereignty was no legal quibble. It went to the heart of the whole philosophy of the trials. This is because the principal crime of which Allies believed the Nazi leaders to be guilty was that of having plunged the world into conflict by planning and executing a war of aggression, i.e. by violating the sovereignty of Poland and the other states the Reich invaded.

It was precisely here, and not in the concept of crimes against humanity, that Nuremberg was innovatory. The concept of ,,crimes against peace"- of violating national sovereignty - was primordial at Nuremberg because, in the words of Supreme Court Justice Robert H. Jackson, ,,The crime which comprehends all lesser crimes is the crime of making unjustifiable war". When Justice Jackson rose to his feet on the morning of 20th November 1945 to open the Nuremberg trials, he did not refer to ,,crimes against humanity"but instead to the fact that this was ,,the first trial in history for crimes against the peace of the world". All war crimes, he reasoned, flowed from the decision to wage war in the first place.

That Nuremberg was innovatory here is amply demonstrated by the fact that it was on this point, and not on the charges of crimes against humanity, that the objection of ex post facto justice was levelled. Apart from the conspiracy to commit aggressive war, moreover, no act committed before 1st September 1939 was adjudicated at Nuremberg. This is because the whole jurisdiction hung on the concept of inter-state war.

In stark contrast to Nuremberg, the International Criminal Court has put off until the Greek Kalends the definition of ,,crimes against peace". In this it follows the jurisprudence of its predecessor, the International Criminal Tribunal for the former Yugoslavia, which refused to open any investigation into allegations that Nato had committed war crimes by attacking Yugoslavia in 1999 because it ruled that ,,the ICTY has no jurisdiction over crimes against peace."

In other words, the ICC's creation represents the de facto and de jure creation of a new international system on the ruins of the old one. Henceforth, in place of a very tight limitation of the right to wage war (only in self-defence or when authorised by the UN Security Council) we will now have a very flexible ius ad bellum. The big states of the world will henceforth have significant judicial weapons at their disposal when they decide to attack a small country in the name of human rights.

Already, the notion that big states have the right to violate the national sovereignty of smaller states - the very thing the Nazis believed - has become an idée reçue in the chancelleries of the powerful Western states. Apparently, the fact that the Nazi judges were convicted in 1947 for sacrificing legality to the imperatives of a higher cause is not sufficient to deter people from making the same mistake today - even though, now as then, their decisions results in the killing of innocent people. The British House of Commons, for instance, concluded in a report that Nato's attacks on Yugoslavia in 1999 were ,,moral but illegal".

But why should state sovereignty be defended? There are at least three reasons. First, it is desirable that the world be divided up into different jurisdictions. A world subjected to a single jurisdiction would be a world tyranny, since there would be nowhere to hide from this world state if its powers were abused. Already, world leaders like Tony Blair have said there is no difference between foreign policy and domestic policy - which is equivalent to saying that the whole world should be subject to one single police force.

Second, state sovereignty is the indispensable structure for democracy and justice. Sovereignty is not an optional concept, it is an inevitable one: in all forms of political association, whether national or international, there is always a point at which power is unimpeachable. Power can be controlled only when this ultimate point is kept clearly in focus and subject to the law. Anything which blurs accountability - such as the proliferation of unaccountable international bodies - is essentially a bad thing.

Justice, meanwhile, is about balancing the competing claims of citizens: this balance can be achieved only when those competing claims are exposed within a clearly delineated space. It is because the New World Order replaces the clarity of sovereignty with the vagueness of abstract morality that it is notable precisely for its egregious double standards. State sovereignty, being another word for constitutionality, is the indispensable condition for the rule of law.

Thirdly, jurisdiction is based on mutuality. The sovereign's right to prosecute and punish criminals is part of the social contract: it is enjoyed as part of the sovereign's role of protecting its citizens, in return for which it receives certain things in return, including obedience and taxes. The creation of a supra-national power to prosecute criminals, detached from all the other apparatus of statehood and consequently immune from any political responsibility for the consequences of its actions, is not the dawn of a new age of legality. It is instead a grotesque elevation of the principle of arbitrary power to the status of an international norm. This is why it should be firmly rejected.